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Independent Education Evaluations: Getting A “Second Opinion”

My son was recently evaluated for special education services by the school district. I disagree with the district’s findings but don’t have the means to finance an independent evaluation. I don’t believe that the evaluation accurately depicts the extent of his disability and how it impacts him academically and socially. How can I challenge their findings???

Independent Educational Evaluations in GeneralIf you disagree with the findings of your child’s evaluation conducted by the school district you can always have an Independent Educational Evaluation (IEE) conducted privately at your own expense. This right is explained in §300.502(a)(3)(i) of the IDEA where an IEE is defined as “an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question.”

The district is not required to follow the recommendations or agree with the findings of an Independent Educational Evaluation (IEE). However, the district must “consider” the evaluation in any decision regarding the provision of FAPE if the evaluation meets its own “agency criteria”. This language can be found in §300.502(c)(1).

What Does “Agency Criteria” Mean?“Agency criteria” is defined in the IDEA as “the criteria that the public agency uses when it initiates an evaluation…” Before selecting an expert to evaluate your child, be certain that you have obtained the “agency criteria” from the school district. This can be easily accomplished by writing a letter and faxing it to the Principal (remember to keep your receipt). An example of requesting “agency criteria” is found in the very complete Disability Rights Education Defense Fund (DREDF) template for requesting an IEE at public expense.

The school district will probably provide you with a list of experts that meet the agency criteria. You are not required to choose an expert from this list. If you expect to have your evaluations considered at the IEP, however; be certain that the evaluator you choose meets the district’s agency criteria.

If you fail to meet the “agency criteria” there is a very strong possibility that the results from your outside evaluation will not be considered by the school district or an Administrative Law Judge (ALJ) should you need to proceed to a due process hearing. Therefore, it is very important that the expert that you choose has at least the qualifications that the school district’s evaluator possesses. If you are uncertain whether your expert meets this criteria do consider consulting with an experienced advocate or attorney that can answer your questions.

What Does “Consider” Mean?Being required to consider the results of an IEE but not to act on the recommendations may seem like extremely vague criteria. You are absolutely correct. Should the district fail to meet this minimum vaguely worded criteria by blatantly refusing to give any weight to an evaluation that meets their agency criteria there is legal precedent for establishing a denial of FAPE. This is why it is important to notify your district (48 hour notice, faxed to Principal, keep your receipt) that you will be taping the IEP meeting.

Independent Educational Evaluations at Public Expense in GeneralThe right to an IEE at public expense is one of the more generous provisions of the IDEA. Whether a child receives needed services often depends upon the opinions of experts. If parents are unable to afford a “second opinion” from an independent expert then their ability to be true participants in the IEP process is compromised. Ideally, an independent evaluation benefits all members of the IEP team by bringing additional clarity to a child’s difficulties. It can also benefit a school district by expediting the evaluation process and supplementing their own evaluation results.

The criteria for determining whether the school district must provide an IEE at public expense is found in Section 300.502 of the IDEA.

(1) A parent has the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency, subject to the conditions in paragraphs (b)(2) through (4) of this section.

(2) If a parent requests an independent educational evaluation at public expense, the public agency must, without unnecessary delay, either—

(i) File a due process complaint to request a hearing to show that its evaluation is appropriate; or

(ii) Ensure that an independent educational evaluation is provided at public expense, unless the agency demonstrates in a hearing pursuant to §§300.507 through 300.513 that the evaluation obtained by the parent did not meet agency criteria.

(3) If the public agency files a due process complaint notice to request a hearing and the final decision is that the agency’s evaluation is appropriate, the parent still has the right to an independent educational evaluation, but not at public expense.

Basically, a school district is not allowed to simply refuse to conduct an IEE at public expense. If a parent requests an IEE then the school district must either provide an IEE or file a due process complaint and demonstrate in an administrative hearing that their evaluation was comprehensive and appropriate. Strategically, this is advantageous for the parents because it is the moving party (the party filing the due process complaint) that carries the burden of proof. In other words, the school district would need to prove that their evaluation was appropriate.

What Evaluations Can I Request?Requesting an IEE is similar to requesting a second opinion. Basically, a parent must disagree with an evaluation already conducted by the school district. You do not need to explain in great detail “why” you disagree with the evaluation and the school district may not delay either filing a due process complaint or providing an IEE should you choose not to explain “why” you are making the request. The pertinent language is found at §300.502(b)(4).

(4) If a parent requests an independent educational evaluation, the public agency may ask for the parent’s reason why he or she objects to the public evaluation. However, the public agency may not require the parent to provide an explanation and may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint to request a due process hearing to defend the public evaluation.

Important caveat: The requirements that the evaluation meet agency criteria to be considered by the school district applies to both privately financed independent evaluations and IEEs conducted at public expense.

I Disagree with the IEE, What Recourse Do I Have?A parent is limited to one IEE for each time that the district conducts an evaluation with which he/she disagrees. If you are unhappy with the results of an IEE provided at public expense than you may not request another IEE at public expense until the school district once again evaluates your child. The pertinent language is found at §300.502(b)(5).

(5)A parent is entitled to only one independent educational evaluation at public expense each time the public agency conducts an evaluation with which the parent disagrees.

Brass Tacks: Writing the RequestAs stated above, when writing your request for an IEE at public expense there is no need for you to specifically state your reasons for disagreeing with the evaluation. Consider the following very complete template from Disability Rights Education Defense Fund (DREDF) when crafting your request. Strategically, I prefer not to “diagnose” or “predict” what I believe is preventing a child from accessing their education. I am not qualified to offer a diagnosis and I do not want to start a debate regarding whether the child has a particular diagnosis unless I am brought into a due process hearing with my own expert.

When requesting an IEE it is helpful to ask for a “comprehensive psycho-educational evaluation” while stating observable facts that support your request. The facts may include demonstrated difficulty completing classwork (is incomplete classwork coming home?), standardized test scores, actual language in quotes that your child has used describing their difficulty, homework that isn’t completed until 9 p.m., crying sessions after school when your child can’t complete the homework.

If the District Does Not Agree to Fund an IEEIf the district does not agree to fund an IEE than they must file for due process and demonstrate to an Administrative Law Judge that their evaluation was appropriate. Should the ALJ find that the district’s evaluation was not appropriate than he/she has the authority to order that an IEE be conducted at public expense. If the ALJ finds that the evaluation was appropriate than the parents may still seek an IEE but it will not be at public expense. The pertinent language is found at §300.502(b)(2).

In all matters, it is important to return to the language that gives you the authority to make your requests. Familiarizing yourself with the IDEA rather than relying upon the district to interpret the statute on your behalf will allow you to be an active participant and alleviate some of the stress that accompanies the IEP process.

Best of luck.

While I am an attorney and I do try to offer suggestions that are helpful for parents navigating the IEP process, I must stress that this is Not Legal Advice. It is not to be considered my professional opinion and should not be relied upon when making important legal decisions regarding your child. If you have any questions or concerns do consider contacting an attorney in your community that focuses on special education.

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